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April 30, 2013
Letters

E-Filing
I’ve survived Armageddon a/k/a e-filing, but only with some unbelievable luck.

Our firm recently opened a credit card account with our primary bank, and luckily we got MasterCards. I find it almost unbelievable that THE PORTAL does not accept Visa, which I think is the most widely used credit card in this country. I’m sure there are reasons for that, but I do wonder if those reasons outweigh the inconvenience to a host of lawyers who don’t have Discover, AmEx, or MC.

I think we need a new rule of civil procedure to cover e-filing — electronic dismissal. What I have, for over 45 years, considered a complaint sufficient to withstand a motion to dismiss is now subject to dismissal (non-accepted filing) by the electronic judge.

William Nussbaum
Jacksonville

Metatags
I commend the opinion issued in March by the Bar’s Standing Committee on Advertising regarding the clarification of prohibitions against the deceptive use of metatags and hidden text by Search Engine Optimizers (SEOs) on lawyer and law firm websites. The impact of the opinion, however, will be quite minimal. It’s the equivalent of ancient Rome forcing every citizen to attend events at their coliseums. In other words, no one practices these SEO tactics anymore anyway.

The use of hidden text on a website, whether by disguising the text to blend in with a background, or making the font point so small that it’s virtually invisible, is a tactic that was once, circa 1999, in practice by “black hat,” or unethical SEOs, but swiftly recognized and punished by the major search engines. As the years went on, some SEOs came up with even more clever ways to insert descriptive text into their pages to game the algorithms (using Javascript, Cascading Style Sheets and off-screen text, or hidden text behind images), only to see their rankings pummeled by Google, or banned altogether, when the algorithm inevitably discoverd the text on a website.

In an ironic boost of credibility to this “insider” testament, on the very day the committee released their opinion, March 5, 2013, Google was awarded by the U.S. Patent and Trademark Office United States Patent #8,392,823 entitled “Systems and methods for detecting hidden texts and hidden links.” Authored in part by Matt Cutts, Google’s de facto head of the search engine’s army of anti-spam engineers, the patent was first applied for in August 2009. Reading through the abstract, it’s my opinion that this chunk of code is basically Google’s final blow to this antiquated and rarely exercised practice.

Why would an experienced, knowledgeable SEO ever attempt to use hidden text anymore? There are literally tens of dozens of other categorical vulnerabilities grey and black-hat SEOs manipulate, with hundreds of far more sophisticated tricks and tactics that are far more effective and with relatively minimal exposure of getting caught. The SEO/Google Spam Team tug-of-war is almost always in the SEOs’ favor. The search engines are forever playing catch-up, so by the time the practice is discovered, segregated, and an update to the engine’s worldwide digital infrastructure is released, the SEOs have already moved on.

The committee is obviously far behind the curve in their expertise on this cottage industry, evidenced by this late and disconnected effort to curb the threat unethical SEO could potentially pose to the existing constructs of the advertising rules imposed by the Bar.

Peter Blatt
Palm Beach Gardens

The Burden of Proof
During a traffic stop, an officer leans over next to the driver’s window and asks, “Do you have anything on you that I should know about?” The driver pulls a pill bottle out of his pocket and says, “Well, these are my pills.” He is arrested and charged.

On November 21, 2012, the Florida Supreme Court approved for use Standard Jury Instruction 3.6(n) regarding the affirmative defense that a controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription. Surprisingly, the court was silent as to the burden of persuasion for affirmative defense, instead directing the trial judge to decide the issue of who bears the burden of proof. As discussed below, the burden of persuasion should always be on the prosecution.

If the burden is on the defense, prosecutors would only have to show actual possession of the prescription drug to overcome an initial motion for judgment of acquittal at the close of the state’s case in chief. No matter what the defense presents to the jury, since the burden of proof is on the defense to prove the prescription by a preponderance of the evidence, the jury would be free to disregard the defense’s evidence and convict. On appeal the prescription holder would also lose, since for the purposes of appeal the court must draw every conclusion and inference therefrom in favor of the state. See Codie v. State, 313 So. 2d 754 (Fla. 1975). The appellate courts would be bound to uphold the conviction. This result must be combined with the three- and 15-year minimum mandatory prison sentences for regularly prescribed amounts of prescription drug possession. This is insane.

There should be two checks on the wrongful conviction. First, the prosecutor should have to come up with some evidence to contradict the defendant’s reasonable explanation of innocence. If the burden is on the state, failure to do so would result in a granting of the motion for judgment of acquittal. Indica of illegal possession will be present in true unlawful possession cases. For example, pills would be held loosely or within unusual packaging; the pills would be present with other drug paraphernalia, the pills were being sold, etc.

Practicality would also dictate that the burden should be on the prosecution. In cases where the defendant is innocent, shifting burden to the defense can be critical and run a very high risk of wrongful conviction. Prescription drugs have many legal uses, and are lawfully possessed by millions of individuals every day. It is not, comparatively, a substance (such as methamphetamine) that has no lawful use in any circumstance. However, when the burden is shifted to the defense, skeptical juries commonly discount the testimony of the defendant or loved ones. Therefore, shifting the burden to the defendant to prove his innocence runs a high risk of wrongful conviction.

Whether the state must disprove an affirmative defense beyond a reasonable doubt turns on whether the defense tends to negate an element of the crime alleged. Supporting this is Jackson v. Virginia, 443 U.S. 307 (1979). In Jackson, the Supreme Court held the due process clause requires the prosecution to bear the burden of production for all essential elements of the offense. As Florida Standard Jury Instruction (Criminal) 3.7 reads, “The defendant is not required to present evidence or prove anything.” A jury must always be instructed that the prosecution must establish every element of the offense beyond a reasonable doubt. Thus, where a defense serves to negate an element, the defendant cannot be made to bear the burden of production. In a case of prescription drug possession, whether a person is lawfully or unlawfully possessing the substance, is an element of the crime. See McCoy v. State, 56 So. 3d 37 (Fla. 1st DCA 2010). The case Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983), is very helpful when thinking about the possession of prescription drugs. In Wright, an inmate was prosecuted for possession of a weapon by a state prisoner for possessing a screwdriver in a correctional facility. The defense raised the affirmative defense that the inmate rightfully possessed the screwdriver, as he had been issued the tool by the prison for the purpose of investigating manhole covers on the prison grounds. The court held that once the affirmative defense of rightful possession had been validly raised by the defense, the state must disprove the rightful possession beyond a reasonable doubt. The state introduced no evidence from which it could be inferred that appellant was not authorized to possess the screwdriver. Therefore, the evidence failed to exclude every reasonable hypothesis of innocence, and the trial court erred in denying appellant’s motion for a judgment of acquittal. This case can be directly analogized to the situation where one possesses prescription drugs. Prescription drugs may or may not be legal to possess, depending on whether authorization exists. If the defense brings forward evidence that the affirmative defense of rightful possession exists, then the state must be required to disprove rightful possession. Failure to do so would result in unconstitutional burden-shifting. Anything less would require an accused citizen to prove themselves innocent.

In Maestas v. State, 76 So. 3d 991 (Fla. 4th DCA 2011), the court upheld the constitutionality of the drug trafficking statutes by reasoning that the state retains the burden in drug trafficking cases. The court explained that the statute does not create a strict liability possession crime because the statute provides that if the defense is raised, the state retains the burden of overcoming the defense by proving beyond a reasonable doubt that the defendant knew of the drugs’ illicit nature. Also, Fla. Std. Jury Instr. (Crim.) 25.7 instructs the jury to find the defendant not guilty if they “have reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance.” Thus, in order to retain the constitutionality of the prescription drug statutes, once validly raised, the state must retain the burden.

Therefore, the burden of persuasion should be on the state to disprove the affirmative defense of prescription beyond a reasonable doubt, once the defense is raised by competent and substantial evidence. When dealing with this affirmative defense, the trial court must determine whether there is competent and substantial evidence in the record that tends to establish the defense. The evidence establishing an affirmative defense can exist in the state’s case in chief, and does not necessarily require the defendant to put on any evidence. Once the court identifies competent, substantial evidence supporting it, the trial court must instruct the jury on the prescription defense. The competent, substantial evidence standard, therefore, is the threshold test for the trial court to apply when determining whether to give the instruction. Once there is a basis for the giving of an affirmative defense instruction, the state must, through rebuttal or inference in its case in chief, produce evidence that would prove beyond a reasonable doubt the nonexistence of the affirmative defense.

Steven N. Gosney
Daytona Beach

FLLIC
Florida Lawyers Legal Insurance Corporation (FLLIC) was formed by the leadership of The Florida Bar in 1979 to encourage greater access to legal services. For years, FLLIC worked with several different prepaid insurance carriers by providing a panel of attorneys we had vetted. These attorneys completed an application form indicating their willingness to serve “insureds” at reduced rates, provided FLLIC with their E&O insurance information, and maintained their good standing with the Bar.

About 10 years ago, our then carrier decided it no long required our services and cut us off (notwithstanding our contractual relationship). Finally, we submitted to arbitration and one of the resolutions was that we will no longer be working with that carrier. Therefore, the FLLIC board has decided to form our own insurance company because none of the existing carriers in Florida offered prepaid legal insurance to groups of less than 500 employees. We see this as an underserved market and are working with Texas Lawyers Insurance Plan to develop both a company and a number of insurance products to serve this market. There are a couple of insurance carriers that sell individual prepaid insurance coverage and a few who will sell to groups — associations, employers, labor unions, etc., of 500 or more employees. (Actually, they want the group size to be 1,000 or more but will consider groups between 500-1,000 employees on a case-by-case basis.)

We have begun the process of filing to be a prepaid legal insurance company and now are trying to reconstitute our panel. If you have ever served on the FLLIC panel, you simply need to update your application and provide proof of adequate E&O coverage (minimum $100,000). If you have never been a part of the FLLIC panel, but would like to be, in addition to submitting your application and providing proof of your malpractice coverage, you will need to pay a one-time processing fee of $25. Once we have verified your good standing with the Bar, you will be welcomed to the panel.

We hope to be fully approved by Florida’s Department of Insurance by the Bar Annual Convention in June and have products (including compensation schedules for attorney panel members) available before the end of summer. Our marketing team will start to work as soon as we know we have attorneys in at least three-quarters of the state’s circuits. There were nearly 700 members of the panel at its peak, but several of these have moved on, moved out of state, some retired, some became judges, etc. We’d like to have at least 1,000 panel members by retaining 300 to 400 old panel members and add 600 to 700 new panel members.

If interested, contact Howard Rosenblatt, president, FLLIC, or Christine Simmons, administrator, at 2830 NW 41st Street, Suite I, Gainesville 32606-6667, by phone, (352) 373-9566 or email chris@hmrpalaw.com.

Howard Rosenblatt, president FLLIC
Gainesville

[Revised: 09-18-2014]